Social media present challenges for healthcare employers, employees

As youngsters, many of us heard our parents admonish us: “If you have nothing good to say, then say nothing at all.” That sage counsel is even more important when it comes to social media.

Joseph Talbot worked as an LPN at Desert View Care Center in Idaho in January 2013 when he posted the following on Facebook: “Ever have one of those days where you’d like to slap the ever loving bat snot out of a patient who is just being a jerk because they can? Nurses shouldn’t have to take abuse from you just because you are sick. In fact, it makes me less motivated to make sure your call light gets answered every time when I know that the minute I step into the room, I’ll be greeted by a deluge of insults.”

A nursing professor who saw the Facebook posting notified Desert View, and the facility fired Talbot for violating its social media policy. Talbot then applied for unemployment benefits, which initially were granted by the Idaho Department of Labor (IDOL).

Desert View appealed the IDOL decision to the Idaho Industrial Commission, which reversed the IDOL’s decision because an employee is not entitled to unemployment benefits when he or she is discharged for misconduct in connection with employment. On further appeal, the Idaho Supreme Court, in Joseph E. Talbot v. Desert View Care Center (PDF), also held that Talbot was not eligible for unemployment compensation because his employment was terminated for misconduct (that is, violating Desert View’s social media policy). Although Talbot argued that Desert View had not communicated the policy to him, his signature on a document attested to the fact that he “received the updated Social and Electronic Media policy and agree[d] to the requirements of that policy.”

LESSONS LEARNED

Among the many lessons gleaned from the Talbot case, one is that employers should have in place a clearly articulated policy regarding social media and should ensure that all employees acknowledge and abide by it. Two of the five justices on the Idaho Supreme Court disagreed with the majority opinion, saying that the facility’s social media policy was vague. Thus, the need for clarity cannot be overstated. When tension exists between a person’s First Amendment right of freedom of speech and prohibited speech, a coherent policy can help make clear the boundaries of each.

Desert View’s policy prohibited “slanderous, vulgar, obscene, intimidating, threatening or other ‘bullying’ behavior electronically towards any physician, vendor, conservator, regulator, competitor, fellow employees, managers and the family members of our patients…or…other stakeholders.” Talbot claimed he was “just frustrated and venting.” The court held otherwise, maintaining that the facility did not have to wait until a resident was slapped or until Talbot refused to answer a call bell in a timely manner. The threat of those actions, which violated the policy, was sufficient grounds for employment termination and denial of unemployment benefits, the court held.

CHALLENGES

Increasingly, employers seek to use social media for legitimate marketing purposes but realize the need to prevent inappropriate comments from being posted on such platforms. Although not an issue in the Talbot case, the possibility exists that an employee, in addition to violating a healthcare facility’s social media policy, also will violate the Health Insurance Portability and Accountability Act (HIPAA) or a resident’s federally protected privacy rights. A YouTube video or a Facebook posting with a picture of a resident’s pressure ulcer not only would violate HIPAA but also can have a devastating effect on an organization’s overall image.

An inherent tension exists between employees’ First Amendment rights protecting free speech and the prohibition against hateful or otherwise wrongful speech. First Amendment protection extends to written words and other forms of postings on social media. The right of free speech is not without limitations, however. Employers face the challenge of developing a comprehensive social media policy that does not run afoul of the law. If an employer takes a disciplinary action based on a violation of its social media policy, it may have committed an unlawful act if the policy is later determined to be overbroad or otherwise unlawful.

The National Labor Relations Board (NLRB) has the authority to determine whether an employer has impermissibly interfered with the rights of workers—even if those workers are not members of a union. The NLRB has held that social media policies are unlawful when they interfere with employees’ “concerted activity,” their right to speak about the terms and conditions of their employment. This excerpt from an actual policy provides an example of an unlawful social media policy, according to the NLRB:

“Use technology appropriately.

“If you enjoy blogging or using online social networking sites such as Facebook and YouTube, (otherwise known as Consumer-Generated Media, or CGM) please note that there are guidelines to follow if you plan to mention [employer] or your employment with [employer] in these online vehicles…

“Don’t release confidential guest, team member or company information…”     

The NLRB determined that this portion of the policy was unlawful because employees have a right to discuss wages and conditions of employment with third parties as well as with each other.¹

In a different case (PDF), after three of a company’s employees appeared in a YouTube video and criticized their employer’s workplace safety efforts, the company terminated their employment. The NLRB determined that the YouTube video was protected and filed a charge against the employer. In yet another case, the NLRB found that a company’s social media policy was unlawful where it admonished employees to “[b]e respectful of the company and its employees and to refrain from engaging in name-calling, unfounded statements or behavior that will reflect negatively on the employer.”² That sentence could be construed as preventing criticism of the employer’s treatment of employees and its labor policies, which therefore made it “unlawfully overbroad,” according to the NLRB.

Employers should avoid vague or ambiguous terms and provide examples of prohibited content for social media. The NLRB’s website has additional examples of social media policies that have been deemed “unlawful.”

Notwithstanding the NLRB’s rulings, employers have a right—and, indeed, an obligation—to have coherent and appropriate social media policies. Organizations such as the American Nurses Association (ANA) provide a wealth of information regarding appropriate uses of social media by nurses. For example, the ANA notes (PDF) that nurses should maintain professional boundaries in the use of electronic media; not share or post information, pictures or videos gained through the nurse-patient relationship; not make any disparaging remarks about patients, employers or co-workers, even if they do not identify these people; promptly report a breach of confidentiality or privacy; and help develop policies regarding online conduct.

Concerned about the challenges presented by social media, the American Medical Association (AMA) adopted a social media policy in 2010. “Using social media can help physicians create a professional presence online, express their personal views and foster relationships, but it can also create new challenges for the physician-patient relationship,” according to the AMA, which provides specific guidelines.

AMDA‒The Society for Post-Acute and Long-Term Medicine established a Social Media Task Force to address the concerns associated with social media. “AMDA initiated multifocal efforts in 2012 to support the educational advancement, integration and use of social media in post-acute and long-term care,” Patricia Bach, PsyD, MS, RN, a founding member of the task force, tells Long-Term Living. “AMDA is fully committed to the integration of social media as an emerging technology for enhanced communication and practice development in the long term care continuum,” she added. As with other guidelines from AMDA, its suggested framework for the use of social media will provide a valuable resource for interdisciplinary teams.

MORE RECOMMENDATIONS

Additional suggestions when developing a social media policy:

• Provide training regarding permitted and prohibited types of social media postings.
• List the types of disciplinary action, including employment termination, that may result from violations of the policy.
• Inform all employees that no form of harassment, threat, intimidation or defamatory conduct involving any resident, family member, employee or anyone connected to the organization is acceptable.
• Tell employees that they should not expect privacy regarding any material transmitted over the organization’s computers or phones.
• Require that when employees identify themselves as employees of your organization, they include a disclaimer stating that any postings on their pages or by them are their opinions solely and do not reflect the views or opinions of the employer.
• Nurses and other professionals should adhere to the social media guidelines of their respective professional organizations, recommend Nancy Spector, PhD, RN, and Dawn M. Kappel, MA, in “Guidelines for Using Electronic and Social Media: The Regulatory Perspective,” a 2012 article in the Online Journal of Issues in Nursing, an ANA publication.
• Remind employees that they are not permitted to use company equipment for postings on social media or to make postings during the hours that they are working.
• Remind licensed professionals that certain actions may result in disciplinary action by their respective licensing boards.
• Draft and revise as needed a social media policy that addresses all employees’ obligations to maintain compliance with HIPAA and privacy protections for all residents/patients.
• Remind employees that they may be civilly liable for defamation and may be prosecuted either civilly or criminally for violations of HIPAA.

References

¹ Cintas Corp., 344 NLRB 943 (2005), enforced. 482 F.3d 463 (D.C. Cir. 2007).

² Stant USA Corporation, Case 26-CA-24098, Advice Memorandum at 5, (October 13, 2011).

Alan C. Horowitz

Alan C. Horowitz, Esq., is a partner at Arnall Golden Gregory LLP, where he focuses his legal practice on regulatory compliance for skilled nursing homes, hospices and home health agencies and manages cases where the Centers for Medicare and Medicaid Services (CMS) has imposed an enforcement action. He is a former assistant regional counsel Office of the General Counsel, U.S. Department of Health and Human Services. As counsel to CMS, he was involved with hundreds of enforcement actions and successfully handled appeals before administrative law judges, the HHS Departmental Appeal Board and in federal court. He also has clinical healthcare experience as a registered respiratory therapist and registered nurse. He can be reached at alan.horowitz@agg.com.